Clarifying the Babel Of Adoption Laws

By
James H. Andrews /
August 16, 1993

THE anguish of the "Baby Jessica" case, in which a Michigan couple - Roberta and Jan DeBoer - were compelled to return the girl they hoped to adopt to her biological parents on Aug. 3, 2-1/2 years after the DeBoers received the child, focused attention on problems in America's adoption laws.

The Jessica case was complicated by the fact that the girl's natural parents, Cara and Dan Schmidt (who married after the baby was born and relinquished), fought to recover their daughter in the courts of Iowa, where the Schmidts live. While the Michigan Supreme Court ultimately deferred to the Iowa court rulings in favor of the Schmidts, the case was dragged out because courts in two states claimed jurisdiction in the matter.

Even if the dispute hadn't crossed state borders, though, it would have raised vexing issues regarding the rights of unmarried fathers in adoption cases, the informed consent of birth mothers to surrender newborns, and whether adoption disputes should be resolved on the basis of adults' legal rights or rather, as in custody contests after divorce, on the "best interests" of the child.

On these and other adoption issues, state laws "are all over the lot," says John McClaugherty, a lawyer in Charleston, W.Va.

Enter an unheralded but important organization: the National Conference of Commissioners on Uniform State Laws (Uniform Law Commissioners - ULC - will suffice).

The ULC is a body of some 300 lawyers, judges, and law professors representing the 50 states, the District of Columbia, Puerto Rico, and the US Virgin Islands. In its 101 years, the ULC has drafted more than 200 proposed statutes on a wide range of legal matters. Once a "uniform" or "model" act has been approved by the conference, the commissioners - who serve without compensation - work for the enactment of the laws by the legislatures in their home jurisdictions.

Mr. McClaugherty is a member of a ULC panel that is drafting a uniform adoption statute. If it is passed by all or most states, the law will bring more order and consistency to adoption procedures in the United States. The 10-person committee includes three judges, lawyers with family-law experience, and other lawyers who, like McClaugherty, aren't adoption lawyers but have wide experience in legislative drafting.

How might the proposed ULC adoption act have altered the Jessica case? According to Joan Hollinger, a visiting professor of family law at the University of California at Berkeley and the "reporter" (chief drafter) for the ULC committee, the uniform act's clear deadlines and streamlined procedures probably would have resulted in swifter court rulings - for instance, as to Dan Schmidt's rights as Jessica's unmarried father.

"A major goal of the act," Professor Hollinger says, "is to expedite the hearings in these kinds of cases and resolve them as early as possible."

Hollinger says the uniform act also would give birth mothers enhanced protection in consenting to adoptions: A birth mother would be informed of her right to counseling and to a lawyer, she would have to sign the adoption-consent forms before a neutral person (not just the adoptive parents' lawyer), and she would have at least five days to revoke her decision. The act would impose additional requirements on unwed fathers who, having previously shown little interest in a child, suddenly appear demanding c ustody rights. And it would settle questions about courts' jurisdiction in multistate disputes.

The uniform act does not establish the "best interests of the child" as a criterion in resolving adoption fights, since that test can result in judicial comparisons of households in terms of income and education. It does, however, provide that adoption decisions should not be made to the "detriment" of a child. The rights of biological parents remain strong under the act, Hollinger says, "but they don't trump all other considerations."

Advocacy groups representing both biological and adoptive parents have taken a vocal interest in the uniform act, McClaugherty and Hollinger say, slowing the work. The project, which started in 1990, won't be completed for at least a year.

Yet there is good reason to hope that out of the wrangling - as well as the deliberative work of thoughtful and disinterested lawyers - will come a statute that will head off future legal debacles like the Baby Jessica case.